30 August 2019

It's only 23 years 11 months too late for the court to have jurisdiction.

Scott et al. over at Simple Justice appear to be upset at a judge for obeying the law: "So what if there’s no law enabling the judge to do it if both sides agree?"

Let's back up for a second and look at what this is all about. A trial judge in Missouri refused to reopen a 24 year old case which the elected prosecutor and a defense attorney moved for a new trial. This was clearly correct under the rules of the Supreme Court of Missouri:

29.11. Misdemeanors or Felonies - After-Trial Motions. . . (b) Time for Filing Motion. A motion for a new trial or a motion authorized by Rule 27.07(c) shall be filed within fifteen days after the return of the verdict.

All the judge had to do when the motion was filed was issue an order stating "Under Rule 29.11(b) this court has no jurisdiction. Case dismissed."

The prosecutor was obviously trying to act contrary to the law. Any trial lawyer who has practiced for any period of time knows how long the trial court maintains jurisdiction after the case is completed. After that the remedies are basically the same everywhere: habeas corpus or pardon. 

Habeas may be a dead end here. According to a commentator on Scott's post, the convicted man had already filed a habeas in 2003, alleged the same things the prosecutor is currently alleging, and failed after taking it all the way to the Missouri Supreme Court. Title XXXVI, Chapter 532 of Missouri's code governs its habeas procedures and 532.040 states
 532.040.  Second writ not to issue, when. — Whenever an application under this chapter for a writ of habeas corpus shall be refused, it shall not be lawful for any inferior court or officer to entertain any application for the relief sought from, and refused by, a superior court or officer.
I've not researched Missouri case law on this, but that reads like taking it to the Missouri Supreme Court may forbid anyone from addressing the same issues at a level below the highest court. In any event, courts are loathe to reopen the exact same issue again and again and again for fairly obvious reasons. There are people out there who will file fifty-two habeases to get out of their jay-walking conviction. Unless there's some impressive new evidence, the fact that the new chief prosecutor doesn't believe in an old conviction is fairly worthless in a court of law.

That leaves the governor's pardon power. Missouri's constitution states in Article IV section 7
Section 7. The governor shall have power to grant reprieves, commutations and pardons, after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to provisions of law as to the manner of applying for pardons. The power to pardon shall not include the power to parole.
The governor could, without a doubt, pardon the person at the core of all this if he believed that person innocent. However, it is unlikely that the Democrat Prosecutor of St. Louis who reached a deal with the former Republican Governor to drop a felony charge against him if he resigned and is being investigated for her conduct in that prosecution is likely to work well with the new Republican Governor.

So, she had one workable option which is non-viable for political reasons, one possible option that would require a lot of work and might be bounced as redundant, and one option doomed by law. She chose the one doomed by law.

I'm not saying that she's alone in causing this kerfuffle. As I said above, the judge could have ended all of this at the beginning with a short, non-newsworthy order. Instead, she appointed the Attorney General to stand against the motion to reopen a case that had been foreclosed by law for at least 23 years and 11 months. You can't tell me that the trial judge didn't know the 15 day rule and needed more attorneys to be involved in order to count to 15. And then she issued a written opinion covering all the potential sins and perceived weaknesses of the prosecutor's position. No matter how well written and reasoned that was not going solve anything.

The prosecutor's office has promised an appeal. That's interesting because, as best I can tell under sections 547-200 & 547-210 of the Missouri Code there's nothing that authorizes such an appeal. I wonder whether the Missouri Court of Appeals will say "This court has no jurisdiction to hear your appeal. Case Dismissed." Probably not. Appellate courts can't say "Boo!" without a ten page opinion.

No comments: